Scrimshaw (a pseudonym) v R [2021] NSWCCA 81

Scrimshaw (a pseudonym) v R [2021] NSWCCA 81

Although the sentencing judge erred by proceeding on the basis that standard non-parole periods applied when none existed at the time of offending, an exercise of the sentencing discretion afresh did not warrant a lesser sentence. The offences were objectively very grave, involved repeated penetrative sexual offending against the applicant's young natural daughter, gross breach of trust, significant harm, awareness of wrongfulness, and prior incarceration for similar child sexual offending. After considering the applicant's subjective mitigation, current sentencing practices and disregarding any current standard non-parole period, the Court would have imposed longer indicative and...

Jurisdiction
Australia
Judgment Date
30 April 2021
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Out of Time and Leave to Appeal Against Sentence
Outcome
Leave to appeal out of time granted; leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['appeal Against Sentence' 'standard Non Parole Period' 'child Sexual Offences' 'resentence' 'guilty Plea Discount' 'breach of Trust']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'standard Non Parole Period' 'child Sexual Offences' 'resentence' 'guilty Plea Discount' 'breach of Trust']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Out of Time and Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether leave to appeal out of time and leave to appeal against sentence should be granted.' 'Whether the sentencing judge erred by applying a standard non-parole period that did not exist at the time of the offending.' 'Whether the Court should consider resentencing and whether a lesser sentence than that imposed at first instance was warranted in law.']

Ratio Decidendi

Although the sentencing judge erred by proceeding on the basis that standard non-parole periods applied when none existed at the time of offending, an exercise of the sentencing discretion afresh did not warrant a lesser sentence. The offences were objectively very grave, involved repeated penetrative sexual offending against the applicant's young natural daughter, gross breach of trust, significant harm, awareness of wrongfulness, and prior incarceration for similar child sexual offending. After considering the applicant's subjective mitigation, current sentencing practices and disregarding any current standard non-parole period, the Court would have imposed longer indicative and...

Court Disposition

Leave to appeal out of time granted; leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal out of time granted.' 'Leave to appeal against sentence granted.' 'Appeal dismissed.']